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Sup.Reme Court of Virginia at RICHMOND INTHE SuP.reme Court of Virginia AT RICHMOND RECORD NO. 931561 DIANE GORICZYNSKI, et al., Heirs at Law of Charles Roach Mccowen, Appellants, v. ANITA 0. POSTON, Administrator d.b.n.c.t.a. of the &tate of Charles Roach Mccowen, deceased, et al., Appellees. APPENDIX Jeffrey T. Talbert Anita 0. Poston SHUTfLEWORTH, RULOFF, VANDEVENTER, BLACK, GIORDANO & KAHLE, P.C. MEREDITH & MARTIN 4425 Corporation Lane 500 World Trade Center Suite 300 Norfolk, VA 23510 Vu-ginia Beach, VA 23462 (804) 446-8600 (804) 671-'646 Counsel for Ap~Oants­ Administrator d.b.n.c.t.a. Heirs at Law of of the Estate of Charles Charles Roa£h McCowen R.. McCowen CotltbilU11ic:: of C.ounsel and Parties on Inside Co•er LAWYERS PRINTING COMPANY 7th & Franklin Bldg. Richmond,Virginia 23219 (804) 648-3664 TABLE OF CONTENTS Appendix Page Bill for Aid and Direction in Ascertaining Distributees, with Exhibit A, filed September 6, 1990 . 1 Last Will and Testament of Charles Roach Mccowen . 6 Stipulation of Facts, with attached Instruction Sheet, entered March 23, 1993 . 9 Cover Letter from the Honorable Leonard B. Sachs, dated June 1, 1993, with attached Memorandum Opinion . 14 Final Decree, entered July 26, 1993 . 26 Assignments of Error . 29 ---- VIRGINIA: IN THE CIRCUIT COURT OF THE CITY Of NORFOLK JOHN W. NEWTON , E~ecutor of CHARLES ROACH McCOWEN , deceased Chancery No. C90- 1356 v Bill for Aid and Direction IN ASCERTAINING DISTRIBUTEES JAMES W. STRANGE SERVE AT:3035 Bray Road Virginia Beach, Virginia 23452 GEORGE HOLLY Serve at: 9010 Granby Street Norfolk, Virginia 23503 NORA WOOTTEN Serve at: 1237 Swallow Drive Vi rginia Beach, VA 23456 ROBERT R. SADLER Serve at: Sadler Aviation Farmville Municipal Airport Farmville, VA 23901 SIDNEY M. BIBERMAN Serve at : 510 Thole Street Norfolk, VA 23505 SAM TAYLOR Serve at : 781 Shady Oaks Court Ponte Verdra, FL 32082 J I M NIENHAUS Serve at: 1057 Chattoonga Street Chesapeake, VA 23320 STEVE -WEBB Se r ve at: 101 Summerset Yorktown, VA 23692 PHYLLIS WEBB Serve at: 101 Summerset Yorktown, VA 23692 HENR Y DRIVER Ser ve at: 1324 Maplewood Avenue Norfolk, VA 23503 VIRGINIA DRIVER Serve at: 1324 Maplewood Avenue Norfolk, VA 23503 1 GARY (RED) CHANDLER Serv e at: RR #2, Box 229A Tecumseh, Missouri 65760 THE HEART FUND Serve a t: 360 Southport Circle #103 Virginia Beach, VA 23452 AMERICA N CANCER SOCIETY Serve at: 808 Live Oak Drive Chesapeake, VA 23320 SAL VATION ARMY Serve at: 203 W. 19th Street Norfolk, VA 23517 JULIE C. McCLUSKEY Serve at: 606 Linda Drive Clinton, MI 39056 JOHN B. JOPLIN Serve at: 2466 Red Bird Trail German Town, TN 38138 JOYCE A. JOPLIN Serve at: 745 E. Prescott Circle Memphis, TN 38111 TRUDY JAYNE CARRINGTON Serve at: 1617 Haynes Lane Redondo Beach, CA 90278 LOUISE ANN JOPLIN Serve at: 2329 Thread Needle Court #4 Albany, GA 31707 JOANNA JOPLIN-BRUNO Serve at: 213 S. Rowlett Collierville, TN 38017 DIANE GORICZYNSKI Serve at: 6116 Granby Street Norfolk, VA 23505 and others unknown Now comes the petitioner JOHN w. NEWTON and states as follows: 1. On September 4, 1989, CHARLES ROACH McCOWEN died, leaving a will duly attested which on the 6th day of September, 1989, was admitted to probate in the office of the Clerk of the Circuit Court of the City of Norfolk, as shown by a copy of said will and 2 probate order attached hereto a nd made a part hereof as "Exhibit A". 2. Petitioner states further that he had paid all lawful claims against said estate and has duly rendered an inventory and accounting of said estate to the Circuit Court of the City of Norfolk. 3. Petitioner states that the following persons have claimed some interest in o r t itle to some of the real property contained in the estate or an interest in the residual estate of CHARLES ROACH HcCOWE N apparently by reason of intestate secession: JULIE C. McCLUSKEY JOHN B. JOPLIN JOYCE A. JOPLIN TRUDY JAYNE CARRINGTON LOUISE ANN JOPLIN JOANNA JOPLIN-BRUNO DIANE GORICZYNSKI 4. Petitioner further says that various questions have arisen and various claims h ave been made by different persons hereinbefore named relative to the construction, validity and legal effect of certain provisions and possible attempts to partially revoke or change various Articles and specific bequests contained in the will (Exhibit A), among which are the following: \vhether a ny legal effect can be given to the apparent attempts at changing or e liminating the provisions of the will or are such attempts void as not being properly attested to, confusing, vague, uncerta in or undertaken when the testor was not of sound mind. Whether the claimants under intestate secession above, have any interest in the est ate of their second cousin, CHARLES ROACH McCOWEN. In the event that any attempted alteration or 3 adjudged to be inoperative or invalid, or to have failed, then to whom, and in what amount should the estate be distributed. 5. The plaintiff is ready and willing to convey said estate as the same shall appear of right to belong, but he is in doubt as to the legal effect of said alterutions to the said will; and by reason of the conflicting claims of the various parties in interest and the uncertainty and ambiguity of the various attempted alterations of said will, he is exposed to sundry suits by said claimants, and to loss and damage therefrom. WHEREFORE The petitioner therefore prays that he may have the advise and protection of the Court in the interpretation to be given to any attempted alterations or revocations to said will; that he may have a decree entered in this cause adjudicating and settling the interpretation of said attempted alterations or revocations of said will and directing the petitioner in what manner he shall make distribution and to whom, so that he may execute the same properly and with safety to himself; and that he may have such other and further relief as the court may see fit to grant. Exe~r of the Estate of CHARLES ROACH McCOWEN, deceased By Counsel James F. Booker Attorney at Law 215 Monticello Arcade Norfolk, VA 23510-1727 (804) 622-7750 4 EXHIBI T A \' me; l N ll\ : In Ll1c C l e rk' s Office o f th<~ Circ uit Court of the City or Norfolk 0 11 Lhr. Glh. cla. y of September, 1989. llE: Charl cs lloach ~lcCowcn-Deceased-Executor The las t will and t e stament of Charles non.ch Mccowen, de­ cea sed, l ute o f the City of Norfolk, who departed this life on t h e ·Ith. da y o f Septe mber, in tlw year 1989, together with sworn s lalcment purs uant to Section G1.1-87.1 of the Code of Virginia, lD:> O, a s ame nded, were this clay produced in the Clerk's Office a 1: ti o f f e r e cJ ( o r p rob a t c . IV lw re upon i t i s con s id c red by the C l < ~ r l ~ lhal t li c s aid will i s .:July and fully proven, and the same i:j o rde red admitted to probate and recorded as the true last will and testament of the s aid Charles 11oach Mccowen, deceased, i 11 d u c r u nn . Thereupon o n the motion of John W. Newton, the Executor n :tmcd in Lhe s aid wi 11., tho Clerk doth appoint John W. Newton a s Lhe Executor of Lite las t will and testament of Charles Roach ~l cCo w e n, d e c e a s ed . There upon John W. Newton qualified as such E:<c culur IJy Lukin ~ and s ubs cribing Lhe oaths prescribed by law and e nte ring into and ackno wl. e dging be f o re the Clnrk a bond in the penalty o f $ 1,000,000.00 pay able and conditioned accord­ ing to law, but without s urety, the will providing that none be r e quired o f him a s s uch. /\ ccrlif i c a t e i s g ranted the s aid J ohn W. Newton for I·>; La Lu o [ LIl e s a.i cJ Chai· I 1..' S lloach Mc.Cowen, deceased, in due 1' 0 1·111. J\nd it i s orde r e d LhaL the s aid bo nd be r e corde d . CLERK 5 ~--_ Ii Wil 1 I soon as I h e t __ -~·----_.... ..,. -. .. --- 7 -- •• - - -.------- ..._.,,,.---... - - ,., ,... v---.. .. , JOHN W. NEWTON as the personal representative of this, my Last Will and of my Estate, and t o serve such appointment without being required to .Post surety on the bonds. In the - event of the deat h, disability, incapac i t y or refusal of JOHN W. NEWTON to serve such appo intment , I hereby nominate, constitute and appoint JAMES W. STRANGE to se r ve such appointment , and JAMES W. STRANGE sh al l al so be permitted to serve as such without being required t o post surety on the jl bonds . I he r eby waive appraisement of my estate. ARTICLE I II ~~ h as foll ws : ~ A. To JOHN W. E Virginia, and t he sum of Ten Thousand ($10,000.00) Dollars. Page 1 . Last Will ~tX~ ~~e .. CHAR[E S ROACH McCOWEN l d~ c..!. 11 6 / tJ / 7-?/ LAST WILL ANO TESTAMENT OF CHARLES ROACH McCOWEN I, CHARLES ROACH McCOW EN , of the City of Norfolk, in the State of Virginia, being of sound and disposing mind and memory , do hereby make , publ ish and declare this to be my Last Will, hereby revoking all Wills and Codicils by me at any time heretofore made .
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